Confusion on part of lawyer and poor communication - IRB application commenced within two year limitation period - MTG and AVIVA 2018 CanLII 39458 (ON LAT17-002122)

June 17, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MTG and AVIVA 2018 CanLII 39458 (ON LAT17-002122)

Date: March 9, 2018
Heard Before:  Adjudicator Ruth Gottfried

IRBs: applicant not fully truthful and testimony given less weight; applicant’s solicitor not current on correspondence received and contents of file; confusion by applicant’s solicitor of the timing of events; IRBs may be applied for; action commenced within 2 years

BACKGROUND:

MTG was injured in a car accident on August 4, 2014 and SABs.  MTG brought an application before the LAT when Aviva denied benefits.

MTG was collecting employment insurance benefits when the accident occurred. Prior to receiving EI he was a general labourer/roofer at a construction company. He received EI until December 2014. MTG applied to Aviva fo accident benefits, including IRBs.

Aviva states that it experienced some delay in receiving employment information from MTG, and finally determined the quantum of IRB at $223.94 weekly.

Issues:

1. Is MTG entitled to an income replacement benefit (IRB), quantum to be determined, from February 12, 2015 to present and ongoing?
2. Is MTG precluded from applying for an IRB, as the application was not commenced within two years after the insurer’s refusal to pay the amount claimed?
3. Is MTG entitled to a medical benefit for psychological services in the amount of $1,795.77 in a treatment plan (OCF-18) submitted September 9, 2016?
4. Is MTG entitled to interest on any overdue payment of benefits?

At the case conference resumption, Aviva requested a preliminary hearing in writing on the following issues:

1. Is MTG’s application with regard to an IRB statute barred?
2. Should MTG’s Tribunal proceeding as it relates to IRBs be dismissed without a hearing with expenses being paid to Aviva?

RESULT:

1. MTG is not precluded from applying for an IRB, as the application was commenced within the required limitation period.
2. MTG’s Tribunal proceeding is to be continued at a case conference resumption before me to be held on a date and time that is agreeable to all parties, to be determined on release on this decision. Expenses will not be paid to Aviva.

ANALYSIS:

Aviva submits that it sent a letter dated February 10, 2015 advising MTG that an IE report of January 2015 provided by a physiotherapist and a general practitioner indicated that he did not suffer a substantial inability to perform the essential tasks of his pre-accident employment and he would no longer be entitled to receive an IRB effective February 11, 2015.  Aviva based its decision on medical reasons and enclosed the examination report as well as MTG’s rights to dispute.

In his affidavit, MTG says he does not recall receiving Letter 1. After being shown a copy of the letter to review, he acknowledges that the letter states that [he] would no longer be entitled to receive income replacement benefits on the basis of medical reports. He also states that the letter was addressed to him at the correct address and postal code, except it indicated P.O. Box #40 instead of Apartment 40. He further states that: “[i]f Aviva had sent me a letter in or around February 2015 terminating my income replacement benefits, I would have forwarded a copy to my lawyers … as they were representing me at that time”. [emphasis added]

Aviva submits it sent another letter dated July 10, 2015 to MTG and his counsel, in which Aviva calculated MTG’s income replacement benefit from August 12, 2014 to February 11, 2015. By separate cover, Aviva sent MTG a cheque for that period.

MTG admits receiving the letter and the cheque. However, he is silent on whether he advised his lawyer of receipt of either. Indeed, it would appear he had not, as in Reybroek’s own affidavit, he submits that he did not receive a copy of Letter 1 until he asked Aviva for a copy on October 20, 2015. In fact, the log notes indicate Reybroek continued correspondence with Aviva after July 10, 2015 making several inquiries regarding IRB determination.  Reybroek states that he did not receive information regarding Letter 2 until August 17, 2015.

Under the Schedule anything delivered by ordinary mail is deemed received on the fifth day after the document was mailed, absent evidence to the contrary. Clearly both MTG and Reybroek advise that they did not get Letter 1. However, MTG is definitive that if he had received such correspondence he would have forwarded a copy to his lawyer. However, we know that he received Letter 2 and a cheque under separate cover and did not advise his lawyer. As that is important information, which MTG did not communicate less weight was given to his affidavit.

Despite the small discrepancy in MTG’s address, it appears he had no further difficulties in receiving correspondence, nor did his lawyers. According to the log notes attached to Reybroek’s affidavit, both MTG and his lawyer engaged in other correspondence with regard to various accident benefit issues. The only correspondence in dispute is the correspondence with regard to the stoppage of entitlement to IRBs.

In support of MTG’s position, he raises the case of Smith v. Cooperators. In that case, the court determined that the notice of the stoppage of benefits was defective since it did not fully explain MTG’s options for dispute. Since the letter was defective, it could not be said that the limitation period had begun to run. However, in this case neither party has argued that Letter 1 did not meet the criteria set out in the Schedule, only that it was not received by either MTG or Reybroek. Therefore Smith is not relevant.

Additionally, Reybroek states in his affidavit:

“I have reviewed MTG's file and made inquiries of my law clerk, M.S., and I do verily believe that Aviva's letter of February 10, 2015 and its enclosures were not received by our office until it was faxed on October 22, 2015, as further discussed below. This is the only copy of the February 10, 2015 letter contained in MTG's file.”

Contrary to this statement is the fact, agreed to by both Aviva and Reybroek that Reybroek requested and subsequently received a complete copy of the accident benefit file on CD on March 23, 2015. The parties also agree that a copy of Letter 1 was included in the electronic material. Reybroek acknowledges in his responding affidavit of September 11, 2017 that although Letter 1 was in the electronic material, he had not had an opportunity to review it.

The Adjudicator found it problematic that Reybroek has sworn an affidavit saying that Letter 1 was not in his office, when it had been there for almost seven months. It seems to indicate that no one had reviewed the CD file requested from and sent by Aviva, and Reybroek was only reminded of it when Aviva noted it in its submissions for this hearing.

The onus of discoverability in this case rests on MTG and Reybroek and the question is when did they know, or ought to have known that entitlement to IRB was stopped. Had Reybroek promptly reviewed the documents he requested, he would have been immediately aware of the date of denial.

It appears that whether or not MTG received Letter 1 there has been a serious lack of communication between MTG and Reybroek. It appears that not only did MTG not communicate that he had received a letter from Aviva and cheque for an IRB, he did not contact Reybroek when he knew, or ought to have known, that no other IRB payments were made to him.

A plain reading of the August 17, 2015 letter indicates that IRBs were no longer being paid. However, it took Reybroek two months to request a copy of Letter 1. Reybroek states that he received a copy of Letter 1 on October 22, 2015.

Lastly, on the issue of the date of discoverability, MTG, in his application to the Tribunal, indicates that he was paid IRBs to February 11, 2015. However, the date of denial in the application is July 10, 2015. This is the date of Letter 2 to MTG regarding his cheque for his IRB. The Adjudicator believes that the receipt of Letter 2 and subsequent cheque was not communicated by MTG to Reybroek, nor is it the date when Reybroek himself saw either Letter 1 or 2. It appears to be a strategic date chosen past the actual date of denial in order to start the “limitation clock” later in the year and thereby retroactively and unilaterally extend the limitation.

MTG argues that since he did not receive Letter 1 at all and his lawyer did not receive a copy until October 22, 2015, then the limitation period should expire on October 22, 2017. However, it is confirmed that Reybroek received a copy of Letter 1 on March 23, 2015 in the electronic material and received the information regarding stoppage on August 23, 2015.

Since MTG did not raise the issue of limitation at any time with Aviva, it seems that in an abundance of caution it would have been preferable to meet the February 11, 2017 limitation rather than try to determine the deadline with a preliminary issue at the case conference resumption of July 14, 2017.

It is not unreasonable for Aviva to have relied on s.64(18)[6] of the Schedule when it sent Letters 1 and 2. Especially since its cheque was cashed by MTG and the log notes indicate that there were other letters regarding benefits that MTG received because he spoke with the adjuster after receiving them.

On the basis of all of the evidence the Adjudicator set the date of August 17, 2015 as the date of discoverability, when Reybroek knew or ought to have known that the IRB had been stopped by Aviva. The limitation period therefore, would have expired on August 16, 2017. As the application to the Tribunal was submitted on March 31, 2017, I find that MTG commenced his application within the two years of the limitation period based on the discoverability of the stoppage information.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.